The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Government Agencies May Not Use Facebook's Strongest Comment Filtering Settings


So holds Tanner v. Ziegenhorn, decided Thursday by Judge D.P. Marshall Jr. (E.D. Ark.):

Facebook page administrators have four options for an automatic profanity filter: off, weak, medium, or strong. Corporal Head tried hard to figure out what words would be filtered by Facebook's various settings, but could not do so. She set the State Police's filter to strong because of the page's audience, which ranges from teenagers to senior citizens. Captain Kennedy said he wasn't comfortable allowing profanity because children and families frequented the page. Corporal Head was clear about the other option: the filter can be turned off. Facebook also has a community standards aspect, which acts as a basic screener and cannot be turned off. Corporal Head said that Facebook updates its community standards regularly based on users' complaints about particular words….

With limited exceptions, profanity is generally protected by the First Amendment. There are, however, instances where the government may regulate indecent or profane speech [citing dial-a-porn and broadcasting cases]. Given the constant presence of children in the State Police's Facebook audience, as well as the family-friendly aim of the page, the agency's desire to filter out obscenities is both reasonable and compelling. Tanner is correct: minors on the Internet likely encounter on a daily basis language worse than what he posted. But the abundance of four-letter words in other cyberspaces doesn't mean the State Police has to welcome them on its page.

That said, … the State Police's filter choice … is overbroad. The State Police doesn't know what words it is actually blocking. This information is apparently unavailable. Insofar as the testimony disclosed, Facebook's community standards might filter out some words even if the State Police turned the page's profanity filter off. The Court understands that Facebook has its own baseline community standards and changes them regularly. The State Police can't do anything about that.

Facebook's control of which words it alone will and will not tolerate, though, doesn't free the State Police from complying with the First Amendment in the filtering decisions the agency can make. In these circumstances, if further study yields no additional information, then the State Police must consider turning the profanity filter off, or selecting a weak or medium setting, supplemented with a narrowly tailored list of obscenities that it wants to block. The Court leaves the specifics to the agency. The Court holds only that the State Police's current filter choice is not narrow enough for this designated public forum.

(The court had earlier concluded that the commenting space on a government agency's Facebook page is a sort of designated public forum, where First Amendment rules constrain the government's ability to block comments.)

UPDATE: More from Prof. Eric Goldman.